Health Group, Christopher Goodridge and Matthew Jacobs

The Ontario Court of Appeal confirmed in a decision released on May 15, 2019 that doctors must provide an ‘effective referral’ where they are unwilling to provide care on moral or religious grounds. The appeal required the court to reconcile a patients’ access to medical services and a physicians’ freedom to refuse to participate in services which they have religious objections – conflicting individual liberties.

What is an effective referral?

An effective referral is defined as “a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency.”¹

Ontario Superior Court Decision – January 31, 2018

The Ontario Superior Court upheld a College of Physician and Surgeon of Ontario’s policy on ‘effective referrals’. The policy required all physicians who object to providing medical treatment (such as assisted dying and abortion) to provide an effective referral, regardless of moral or religious beliefs. The policies did not require physicians to personally provide the services to which they object, except in an emergency where it is necessary to prevent imminent harm to a patient.

The appellants were individual physicians and organizations representing physicians in Ontario that challenged the policies on the ground that the effective referral requirements infringe their freedom of conscience and religion under s. 2(a) of the Canadian Charter of Rights and Freedoms because the requirements oblige them to be complicit in procedures that offend their religious beliefs. The appellants also claimed that the effective referral requirements discriminate against physicians based on their religions, thus infringing their s. 15(1) equality rights.

The Court found that while the policies infringe their freedom of religion, the infringement is justified under s. 1 of the Charter, because the policies are reasonable limits, demonstrably justified in a free and democratic society. The Divisional Court did not consider whether freedom of conscience is engaged. It dismissed the s. 15(1) claim in its entirety.

Ontario Court of Appeal – May 15, 2019

Ontario Court of Appeal upheld the decision of the Ontario Superior Court, affirming the constitutionality of the ‘effective referral’ requirements imposed on doctors by the Ontario College of Physicians and Surgeons. The ‘effective referral’ was found to be fundamental for the trust that must exist in the physician-patient relationship, physicians acting as navigators for health care services for their patients.

Strathy C.J., writing for the three judge panel, ruled unanimously that the s. 7 Charter protected right of patients in Ontario to equitable access to medical services outweighs a doctors’ freedom to refuse to participate in any way in services which conflict with their Charter protected religious view.

Key takeaways

• The ruling reaffirms that in a publicly funded healthcare system, physicians are required to place the interests of their patients care ahead of their moral or religious values in the event of a conflict.
• This decision does not address hospitals or health authorities’ obligations to provide effective referrals. That said, health-care providers should be mindful of the courts insights in drafting their health-care service policies.
• Finally, while the decision does not change the position that the Charter does not provide any positive rights to health care, where the government has a system in place to provide specific health care services, it must comply with the Charter.

¹ Policy Statement #4-16, entitled “Medical Assistance in Dying”, refers to “nurse practitioner” in place of “other health-care professional

This update is intended for general information only. If you have questions about the above, please contact a member of our Health team.

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